2016 was a year of many surprises in the world of American politics. Several events shook the political landscape, even before Donald Trump won the presidential election; one in particular has the potential to shift the balance of the Supreme Court for generations to come. Associate Justice Antonin Scalia passed away unexpectedly in February of 2016, opening a Supreme Court seat: that seat remained vacant for more than a- year, leaving the Court deprived of its ninth justice. Typically, it is the role of the incumbent President to nominate a new justice following the death or retirement of one of the jurists, but President Obama was denied a third nomination by the Senate. Senate Republicans refused to even consider President Obama’s pick, Chief Judge Merrick Garland of The DC Circuit Court of Appeals, citing how close the impending election was and that the next President should make the nomination. While Secretary Clinton’s victory would have almost certainly resulted in Chief Judge Garland’s nomination and appointment to the Court, today the bench has been filled by another: Neil Gorsuch. The legacy that Justice Gorsuch will leave remains to be seen, but his appointment begs an important question: what if it had been Chief Judge Garland?
Merrick Garland was born in 1952 in Chicago, Illinois, where he was raised by his two parents. He grew up Jewish, his father was in advertising and his mother was a local volunteer. A young Garland attended a suburban high school outside of Chicago, where he graduated valedictorian. He later graduated from Harvard College with a Bachelor’s of Arts, then attended Harvard Law, where he tutored undergraduates to pay for his tuition. In his time at Harvard, he served on the Harvard Law Review, through which he secured a clerkship with the famed Supreme Court Justice William Brennan Jr., making his first foray into the legal world. In the earliest days of his career, Garland moved back and forth between the Justice Department and the D.C. firm Arnold and Porter.
During his time in the Attorney General’s office, he worked under former Attorney General Janet Reno, who put him in charge of the department’s inquiry into the infamous Oklahoma City bombing. He made a name for himself within the Justice Department, and caught the attention of then-President Clinton, who nominated him to the U.S. Court of Appeals for the D.C. Circuit in 1995. It took some time for Garland to be confirmed to that position as lawmakers were hesitant to fill the vacancy at all. He finally took the bench in 1997. In his time on the court, Chief Judge Garland developed a reputation for upholding executive power and practicing judicial restraint, the latter of which would be atypical for a liberal judge. The consensus on Chief Judge Garland seems to be that he is a moderate on Constitutional issues-- he was considered more of an agreeable nominee than a Democratic answer to the deeply conservative Justice Scalia. During hearings before the Judiciary Committee for his nomination for chief judgeship of the Court of Appeals in 2013, Sen. Orrin Hatch (R-UT) called Chief Judge Garland a “consensus candidate,” saying he would be “very well supported by all sides.”
While few of the cases that he heard during his time at the Court of Appeals received much media attention, he remains proud of his accomplishments. Chief Judge Garland has had input on thousands of decisions in his long tenure on the Court of Appeals, but in an appeal to the Senate Judiciary Committee, he put forward a few examples. The recurring theme of the decisions seems to be supporting the underdog, in contrast to his statist reputation: he advocated for prisoners, though he seemed to favor prosecutors and law enforcement over criminal defendants. That being said, he seems to enjoy calling attention to instances where he took a stand against special interest groups, particularly against federal contractors donating to political campaigns and a real estate development that threatened an endangered species of toad.
Merrick Garland would seem to be an inoffensive and moderate man, genuine and steadfast in his opinions, but a question looms: how does he compare to Neil Gorsuch? Much like Chief Judge Garland, Justice Gorsuch has a record of ardent judicial restraint, though the similarities between the two end there. Justice Gorsuch’s particular brand of restraint has an originalist bend, deferring to perceived intentions of the founding fathers when addressing Constitutional issues. Unlike Chief Judge Garland, Justice Gorsuch was by no means a consensus candidate; he has a strong conservative record on all but a few issues. Justice Gorsuch paints a picture of the classic Republican, a “family man with homespun conservative values”, a “patriot through and through”. Chief Judge Garland brings an altogether different style to the bench. His philosophy is less clear and cohesive, dwelling in the grey areas of judicial politics. What Chief Judge Garland would do on the Supreme Court, had Hillary Clinton won the election, remains in the realm of speculation. It is difficult to say whether or not many of the same cases would even be heard by the Court in these different circumstances. His presence on the Court is not on the bench, but as a phantom, a reminder of would could have been, for better or for worse.